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tv   Harris v. Arizona Oral Argument  CSPAN  August 4, 2016 5:57pm-7:01pm EDT

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have you around. i hope you will find this was an incredibly clever move in death future years it will redefine the economy [inaudible conversations]
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in case 14, 232 arizona independent redistricting commission. >> mr. chief justice if it pleases the court, the one-person one-vote principle of equal protection requires apportionment to make a good-faith effort and not to equally apportion as practically as possible and while deviations are tolerated there only minor deviations for a legitimate purposes for rational state policy intended not to be discriminatory or arbitrary. here in arizona the redistricting commission with the state legislature by almost 10% with the district court found it did so for two reasons the first was to obtain a partisan advantage the second was a
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perceived belief that these were necessary the justice department pre-clearance approval needed these justifies that deviation from the constitutional principle one person one vote. >>. >> q. what does to overturn the actual finding compliance with the voting rights act and that was the reason is that a factual finding? >> no i don't but when you say justice kennedy there pre-clarence of of taking the voting rights act it was not necessary to under populate with popular -- the populace. >> it is i'd that you make
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this charge for that effort how far it and though legislature to give republicans more than their share of the state legislature and they want 56.6% in that exceeded the republicans statewide registration and that has failed. >> we would state your honor they ain't competent gerrymander is no less the gerrymander when it has the partisan objective but what
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we are trying to achieve is the one person one vote standard. that is why whatever the political outcome that doesn't indicate it. >> is still is not clear what you want to say about the commission's rationale for compliance. that was raw and as a matter of law? if you don't overturn the factual finding cliff the belief of what they're doing is correct then you have a problem or do you? >> it'll think i do because what the district court found they told then you can depopulate this and you should because you need to create the underpopulated minority districts to obtain pre-clarence that is wrong the voting rights act does not command or compel or require underpopulated districts the solicitor general noted in the
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briefing of the justice department guidelines. >> how confident are you of that? that pre-clearance process at the department of justice is famously opaque and usually the state's and municipalities had to go through several layers of back-and-forth of the bargaining process. >> we certainly agree the pre-clearance process was very opaque as you said mr. chief justice it was like looking at chicken entrails nobody knows what you want to do or not to obtain pre-clearance but fundamentally the voting rights act even to shelby county could not compel the redistricting authority to repopulate so the advice given you must under populate these 10 districts for pre-clarence was sought
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as a legal device that does not justify reapportionment so they could have had their own expert they had to maps a draft in the final the draft had 4% to deviation roughly in their own experts said it edifies the voting rights act then they did 8% deviation. >> so they could have without this disproportion in but they thought that was okay. >> they thought there doing this to comply with the justice department so what is the test? what they intended or the objective? >> look at both the objective test is does the voting rights act require you to repopulate a
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district? >> assuming the answer is no but people who made this apportionment were mistaken and they thought it allowed and would require you to do that so that doesn't show a bad motive on their part? >> data of think that the courts held bad legal advice was a constitutional violation is what they're saying. >> that is different from impermissible motive what is the test? finigan this case all three judges' split on the burden of proof is where you have one assumed illegitimate partisan the advantage and another where it is okay because the adviser says that was necessary for pre- clarence but the task falls to the commission to
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justify that standards of a mixed motive case that this was necessary to comply with that. >> and it was a finding of dominance. >> to of the judge's, i did find that was predominant. >> can you have the burden seeking to overturn. >> and there was a legitimate motive but she assumed that this partisan advantage was illegitimate say you have a case where this body is unconstitutional to come forward with two explanations one supposedly legitimate in pre-clarence
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based on erroneous legal the advice and the court split on the burden of proof. >> mr. hearne you are not contesting the factual finding the predominant motive was to comply with the border rights act? >> we take that factual finding we do not protest to those that we do believe the court applied the wrong bird in shifting standard in the analysis of the facts. with a mixed motive the proper response would have been okay you have shown we found one illegitimate motive you keep saying mixed motives people are figuring out if you are or not contesting the predominance motive was the voting rights act? >> when we see the voting rights act the court found
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and it is a factual finding that is the predominant motive i don't mean to her ring you on this but i want to understand your argument. >> to be very clear yes we accept a factual finding of the two judges what they said was a primary motive. but they did not shift the burden in the next motive case under arlington heights footnote 21 and second they erred when they gave that justification when it sounded legitimate when really there is not a legal need to do anything it cannot compel vote dilution and bad justification even in good faith was not excused a constitutional violation of one person one vote at minimum needed to be remanded and have the commission explain why they
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can justify that population deviations that is our position, justice kagan. >> ion even further confused. i am understand you gave up racial or political figure a man during -- gerrymandering. >> correct what are you relying on that was severely for the case of this court has ever said that a deviation of this amount is significant? >> i thought it was anything below 9%? >> what the court has said this jurisprudence that a deviation of over 10 percent is prima facia if it is said deviation of less than 10% the obligation is on the
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party challenging to present evidence showing it is done for the arbitrary or discriminatory purpose that is how we understand that purpose alice a plurality opinion. >> i don't understand i don't know of any case where we have required an explanation under 10%? >> two responses. first this court had a summary in a concurring opinion and justice beyer debt say there is not a magic line and other decisions of this court have always disavowed creating a simple line test where deviations from the constitutional standard are tolerated so for example, they said we don't want to set a line because the minute we do that
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legislators are redistricting and use that as the new standard. >> in fact, they have. pretty much they have used 10% and we have not discourage them from doing that. >> it certainly has appeared in the district court decisions that they have looked at that. we see that as a bird in shift. >> what that says our decisions have established the apportionment plan with the maximum population deviation under 10% are in that category of minor deviation previously minor deviation among state legislators are insufficient to make the case of insidious discrimination that is the holding of the court so this seems to be in the category of minor
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deviation where you have to make out or something so what do you thank you have to do? >> it is what we did too, to the court to present to them the evidence that the district court found you have a deviation that is done for the legitimate purpose and there was another pretext of the pre-clarence issue that satisfies the burden to require a traditional judicial scrutiny. >> doesn't this lead any single plan? >> no. you still have to have a showing of an illegitimate purpose behind the deviation
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>> but if you didn't just established by the fact of the deviation what kind of evidence did you present to the district court? >> in this case is unique because as the judge found in his dissent dissent, statistically there was systematic malapportioned and done for that reason. >> is that chart in the appendix? >> yes. it is in color we also provided. >> and it shows the districts are systematically statistically malapportioned for that purpose of medicine showing. >> but i thought you were saying, a mr. hearne that what you presented was a motive and that was that they didn't have to do all
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of this for the voting rights act compliance correct? >> the first is a legitimate justification is partisanship to gave the vantage. >> you said you were not challenging the factual finding that was incendiary the dominant part was the voting rights said you want to undermine that rationale but then i step on the same question as justice scalia so what evidence to present that there was that impermissible motive with respect to that as opposed to a different views as much to the voting rights act compels? >> the voting rights act could not compel so legally dead is invalid second to bring up the point of
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arlington heights point where we show that illegitimate motive of partisanship in that task falls to the commission to justify that i reserve the balance of my time. >>. >> mr. chief justice if it pleases the court court, fortunately or unfortunately there are many facts not in dispute addressing justice kennedy's question, the state does not dispute the independent redistricting commission did indeed draw districts on unequal population all of these were not random or accidental. we also know and the record shows that no one disagrees this pattern to under populate minority districts was done to further ability to elect districts and that
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they did it intentionally so why are we here today in the background on this score has always held equal protection is not a criteria when it comes to redistricting but is essentially the background that takes place the state of arizona secretary does not dispute that compliance has a legitimate state interest and we don't dispute maybe there was a good motive but the problem is they don't matter when you have is undermining of the fundamental principle one-person one-vote so we have a violation of equal protection clause because systematically and actor populating those abilities it violated the equal protection clause and that principle of one person one vote so by overpopulating the other districts they had their votes diluted by diluting those votes it
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violated the constitution. >> it sounds fundamental that statute can authorize a constitutional violation so even the attempt to comply is not sufficient if violates equal protection clause? have we ever said that? it is obvious bin in the context of the voting rights? >> this court consistently has held the concept of the principle of one-person one-vote any attempts to undermine that. >> but we have said even minor deviations are not permitted if they're statutory required? >> no statue can trump the constitution the voting rights act cannot re-read in a way to violate. >> that is what the judge said in his decision or in his dissent we don't dispute
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or don't say complying with the voting rights act may be legitimate but when it is done in a systematic way with the one-way ratchet essentials using based on racial or ethnic classification into underpopulated as districts and overpopulate others what you have done is essentially violated the one-person one-vote. >> which is a compliance or the desire to obtain pre-clarence is at least like other traditional districting considerations like respecting county lines are municipal lines? would you agree? >> yes justice. is this your asking us to say that the things that
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were really necessary to obtain clearance but they went further they went beyond what was really necessary we would have to determine if that was true or not or some corps would have to determine. >> in this instance because of the systematic way as well of the intention that they underpopulated those districts however we do believe the voting rights act is the criteria set to have these population deviation setter incidental and not intentional bin that is what causes. >> what is the only way a state could obtain pre- clearance when
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sanctioned five was still in force was to underpopulated districts is that permissible the you might have a situation the only way you could respect to the municipal or county lines was two under populate to some degree? >> the irony is in the draft map justice alito to elect those districts however when the independent redistricting commission with the draft map to the final map it was stolen way ratchet they systematically underpopulated. >> but he is asking you whether or not of a deviation is permissible for protecting communities interest or their municipal lines is that permissible? to make guests justice kennedy if incidental and not intentional. >> what does that mean? >> i thought you were saying
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that it doesn't matter if he we're doing it to obtain the justice department clearance you cannot do it if it is unconstitutional that is that you don't have equal reapportioned districts it goes beyond what is tolerable it is a violation regardless if you are trying to comply is and that you were saying? >> yes. but i think it is important to note we look at this as a qualitative and not quantitative analysis isn't a magic number at this point it is unconstitutional or not but the state's position compliance was like other criteria like protecting communities of interest for geographical boundaries so considering that you may have been incidents where you give some that are above or below the line so district may be below the
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wind is not a constitutional violation but the harm occurs when the independent commission systematically - - systematically under populates those districts to overpopulate others to dilute those votes. >> let's say there is a policy that say is we want to respect county lines and we also know we want to do one-person one-vote but we have some leeway at the 10% and there is a policy even though that will cause more deviation so are you saying that is impermissible? >> it is a policy. the road to hell is paved with good intentions so our position is regardless of their intention if they're
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doing any systematic way to overpopulated underpopulated others it is constitutional the voting rights act. >> even it takes to have four or 5 percent for seven or eight you don't cross that 10 percent threshold but if you go up and doing a purposefully in the attempt of we have a policy to maintain county lines that is impermissible? to make yes. >> when it is done systematic intentional to create burroughs of certain people then overpopulate other districts that violates the one-person one-vote principle. >> however you on this side of the case? you were the defendant in the district court? >> the secretary of state bought the principle of one person one vote to uphold that principle was very
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important that is why we felt compelled to be in this case. >> but only on appeal you didn't argue decided district? >> that is correct. >> what happened was there an election and in between? [laughter] >> yes. i won overwhelmingly. [laughter] >> i will be in for reelection in three years. >> so it doesn't make a difference of the end result the legislature with the republicans disproportionate share of the seats? >> yes. our position that ruling is irrelevant with the numbers alternately that percentage. >> said that would be an even greater disproportion
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of republican representatives. >> is is not a line drawn case but over or under population case of how the lines are drawn with that representation in the state house or state senate is not important or not the key to the state's argument is the intentional systematic ratcheting under populating districts is what undermines the one-person one-vote principle that makes these actions constitutional. >>. >> mr. chief justice of it pleases the court there is known proved that those dust districts violate the ethical protection clause.
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>> you except the fact finding that at least part of the motive? >> i don't think that was the fair characterization of what the district court found. >> really? >> the dominant motive? >> there may have been to modify commissioners to ask one district with un mixed motive to urge them to be made more competitive they did not find a commission as whole did not act en in that instance the neck is not one of the ones that is significantly underpopulated the decision to make them more competitive even if it was motivated has nothing to do with the 8.8 deviation. >> i would be very upset if there is any motivation i wish this case had, before
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the case last term which approved your commission despite the text of the constitution because this commission was going to end partisanship and get politics out of redistricting and hear the very next term we have this case which asserts there is a law of partisanship on the part of the conditions bin not a fair characterization of what happened to read the district court found after a full trial after a full opportunity to prove their claim that there was discrimination is simply is not what happened instead these deviations the merged in the final part of the process as they work to make sure the pass would pass clearance on the first try something the state of arizona failed to achieve previously three times. >> the district court found on page 79 in the appendix
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partisanship took place in played a role so you want us to interpret that to mean that if there was no partisanship everything would come out exactly the same way? it had no effect whatsoever? >> with respect to those changes to of the commissioners may have had mixed motives of the pre-clarence arguments and the democratic party closer to parity still deny get there and i think. >> that is the read hearing we need to discuss that issue if it is proportional representation you get 55 percent you will get 55 percent of the representatives but in the electoral system in the united states of a single member districts winner-take-all a neutral district plan will never produce exactly the same
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breakdown of legislators has the votes in the election that is a side issue so what do we do that partisanship took place and had a role? >> even if you inflate that far intended by the judges wrote the opinion the case was the case partisanship been the dominant controlling factor. >> but what interests me about the case that if we assume that partisanship is not a legitimate consideration or respecting county lines and if we interpret of the opinion that finding partisanship was part of the reason for the plan that was adopted
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adopted, is the test of what we normally a mixed motives situation and so that consideration is one of the reasons that the burden shifts to the defendant to show they would come out the same way even if that factor was not in the case. and a few other cases and in this particular context that is not the test is whether that illegitimate factor of race was a dominant consideration. >> this seems to turn on that choice those debtor counterfactual of the opinion it does seem to make it like a fool's errand.
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. . >> if that. >> no your honor nobody thinks it's illegal. >> that is one of the issues in the case. we will talk about that later, bipartisanship. if you want to say to the make a difference because partisanship is a valid consideration, fine, pine, that's your point. might question as it sounds to me, the response of your question to justice scalia's that it is all right to use an illegal standard in part to reduce equal representation.
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>> for all the same reason the court has many times said we are not going to say any ratio consciousnesses is enough to validate less a predominates, think you would want to follow the same approach. even if you're going to adopt the parity between racial considerations and partisan consideration makes no sense. the entire line of cases is about tried to decide whether it is razor party. when you come to the conclusion that it's party then it's okay. >> i pretend my notes that you are arguing that partisanship is a valid consideration and redistricting? is that what you want me to say. >> is really can your honor, you said it in the alabama case. he alabama case. he said put a call affiliation is one of the criteria that lines are always considered. >> that is your opinion your honor. >> how do we write this? two areas that are difficult right. one is, i know this 10% rule but it doesn't say that we don't look at it at all. the institutional he cannot. we view thousands of pages of records in every redistricting
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case. so what is there that describes the standard we should bring to this. and the second which is a direct application of the first is that you are quite right, how can we say that partisanship cannot be used at all when you're doing one persons vote but the skies the limit, the reigning fact, to disguise the limit when you're growing boundaries. now how do you reconcile our institutional ability with the need to have some policing here? you reconcile what we say in this case with what we have held in the other area? those are two questions in the back of my my. i would like to have your -- >> and i answered the second question first on a? >> if you are the less. >> it seems to me, it would be not defensible to adopt a rule that says part of that would
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have some biasing of the map where as in the line join area, the be situation you have always assisted that there not only be a biased effect but a be very large. >> i didn't ask you what we shouldn't say, yes we should say? >> what you should apply is the rule that is applied in all of these cases about minor population deviations. is there rational, legitimate policy that the state can articulate which is the reason why they arrived at this difference, and here we have the voting rights act is the rational, legitimate state policy. >> let's talk about this for a second. if action in redistricting and overpopulation would constitute illegitimate racial discrimination, can the answer that we are doing that to comply to get preclearance from the justice department legitimized
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the? >> yes, your honor. this court has that a number of times that the plan with the voting right act is a compelling state interest. assume that just let -- >> my question, if the action is taken, would otherwise constitute illegitimate racial discrimination. i'm try to find out if the justice department's procedures can trump the requirements of the can trump the requirements of the constitution? in other words, it's an issue of, you know we said in another case that it is not enough a complete excuse print tension of discrimination that you are trying to avoid liability under title vii or discrimination on the basis of a fax. i'm wondering if it is somehow different. if the justice the justice department is insisting on conduct that would constitute a violation of their insisting on more than they should be? is that a defense for the redistricting question. >> your honor, the one thing that is clear is that the voting rights act is required people drawing lines to consideration, section five required it, section two requires that right now. >> i understand that, it doesn't say that all bets are off. >> no, your honor. the line this court has jon's between maps which go too far
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and maps which don't. maps in which an racial consideration predominate and subordinate all other traditional redistricting principles here. what you have in this case is the quintessential map where that is not true. >> it seems to me you are avoiding my question. what is the requirements the justice department ask for for preclearance go too far? >> if that justice department reads the voting rights act in a manner that requires them to be something to go too far in the predominate says there might be a constitutional problem. there's no indication indication here that is what happens. >> so, whether or not preclearance as a defense depends upon whether the justice department is assisting on too much? >> it could be your honor. there's no indication of anything like that here. this is this is a case where they simply said no -- is not like the 90s where they say you have to create new districts no matter how ugly to comply with -- >> look at the finding to support the chief justice said. >> while partisanship played a role in the increased population
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deviation associated with changing district pace, so too too did it preclude the goal debating the change. it is the first half of the sentence which is raising the issue that i think people are trying to get you to say how we write that you see, because it says it played a role. so we are going to be asked here by the other side to expand on what that means to play a role. we have to write an opinion. if you rule you rule this case there has to be worse. but i support you. how do we take this thing, what would you say about the word play a role? >> i would say two things, your honor. personal your honor. personal it is a tiny role in this case. second of all of it was all the only reason why you would have a population deviation under 10% i think it would be not defensible for this court to say that by itself is unconstitutional. the minimalist effect on any interest in terms of representation from this difference a population, absence
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and buys from the way that the districts elect candidates that it simply is not a constitutional problem that you want to recognize with even if a true motive was partisanship. it simply is not something that should be taken seriously as a constitutional problem. here with the predominate role is to make sure the districts will pass preclearance and less than 50% of the commissioners may have had, for one district where they increase the deviation slightly, like .2% may have had some partisanship as well as the voting rights act in mind for district 8. not one of of the tender offer to the justice department districts. that is a tiny, tiny, sliver part of partisanship for less than the full commission. >> there will were case where the commissioner, whoever was responsible for producing the plan chose between two plants. plan a has a deviation of .1 percent, plan bb has a deviation of 9.9%.
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they write a report and they say it came down to these two plants and we chose be, because we want to mac maxima minimize the legislature of the democrats. >> i think that the constitutional of that but that is not this case. >> notes not. >> you have gone as far -- the gerrymander, massive disparate income that plus the intentional abuse of 9.98%, all of that together you firm they constitutionality. by itself i don't know that i would even say -- >> that's because there is no constitutional criteria for where you draw the district lines. there is a constitutional criterion for how you way voters district by district. there is, it's one person one
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vote, there's no such criterion for where the location of a district line has to be. >> this court has set over again that we want to give states leeway in this area because representation is often better to give them some chance to make it within the 10% ban. if you allow them to do what they suggested here, to bring partisanship in and they can get the federal court and they can get the trial just by that, then exactly what you said it's going to happen. everybody with a political motivation to try to do something to undercut a map is going to come in, it's easy enough to allege partisanship. the only evidence they have a partisanship besides a little story of district date is simply the pattern, the hispanics district are underpopulated and the native american district happened about democratic. so you have this pattern, chart that points to but that is not evidence, is equally consistent with what happened. which is
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they wanted to make these districts more persuasive as ability to elect district so they could get preclearance. and they all got preclearance for this is a case where you wonder, where's the beef? what exactly are we here for question and there's no problem with this map. it is not a partisan gerrymander, it's not a racial not a racial gerrymander comments within the 10% boundary. they did everything and open. everything that's been complained about here, everything about the overpopulation of the districts was done unanimously by all five commissioners who adopted the goal of getting preclearance, who adopted the idea that they had to get ten districts not eight districts, that every single change to those ten districts to increase their overpopulation was unanimously voted by five commissioners. this is is a case where simply nothing seriously been argued that could possibly look at violation. seems to to me we could talk about whether or partisan quezada by itself if the only problem is it deviation is unconstitutional. i recommend
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you not to that for the reasons you said in their dissent, by this point this case is so far from that. republic commissioner is a voted everything that they have complained about because they too want to get preclearance. the state of arizona wants very much to have it's a map go into effect for the first time since the 1960s when it became covered by the voting rights act. rather than having to federal court have to put the map into effect because preclearance was denied. they hire lawyers who work in the justice department, told them how many districts they david, told them it was necessary to redo these lines and they could go to the 10% limit. they the 10% limit. they been tried very hard to minimize that. one of the things of parts recognize here is that you could have probably equalize the population here and still gotten districts to the same level of hispanic population. you would've had to look at what the court has many time criticize. there's lots of other hispanic people in the state of arizona
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were not in these districts because they are spread out all over the place. if you're going to draw compact districts in districts that respect county boundaries, and census tracts and communities of interest, something has to give. what gave here was this modest, tiny small amounts of population variation that seems to me just is not a serious candidate for any kind of constitutional invalidation on the fact that this case, which i've been challenged here is completely erroneous. >> the court has no further questions. >> thank you. >> think it counsel. >> with harrington. >> thank you for the questions this case is not whether second edition five can compel divisions from a perfect laplacian stander per the question is whether the
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deviations are permitted by the constitution. this court has made very clear that when strictest routine plan within 10% deviation from a perfect population equality stander, those planes those plans are presumed to be constitutional. is that presumption is a role that has three important principles. if i can briefly list them as such minimus deviations be met by themselves by late equal protection. the second is that giving states a 10% leeway actually enhances citizens unfair and equal representation by allowing states to pursue other districting principles. and the third is limiting court intervention in the minimus division cases protect the states right. >> excuse me, 10% really a minimus? but really to minimus? that's misleading when you're talking about 10%. >> i certainly don't mean to be misleading about it.
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it's what this court has you. >> i know it has. >> have never cusick were to be a misleading, the point that the court has made is that the sort of 10% deviations from perfect population equality do not have enough of a dilute affect to really affect any citizen's right. >> does anybody contest that? i don't think that is contested here. i think the other side is willing to concede that it's presumptively okay, which means they have to come forward to show that there were in valid reasons why there is this discrepancy. >> yes and in our view the issue begin and end with requirements argues that the plaintiff have not made the case of discrimination in this case. so the actual motives -- >> i don't understand that. i thought the prime case means if you have not made a primal facial case it means you have to bring in other evidence. it doesn't mean you're out of court. >> but if you have not made the case means the state is not to justify its reasons for the deviation. is on this context in order to
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make and any contacts to make this case you what you have to do is put in enough evidence of her which an inference is discrimination can be made, what that generally requires is that the challenger has to put in enough evidence to read but the presumed reason for the challenge action. in this case the arizona constitution steps worth the redistricting criteria that the commission is to use and join district lines. so at a minimum the plaintiff should've come in and demonstrated that the deviations i have observed were not explainable as in service. >> let's assume that the opinion of the district court have about that partisan was part of the consideration. are you saying that that finding
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cannot be sustained because it was not be able based on sufficient evidence brought forth by the plaintiff? >> the first point of clarification, the part of the thing you read was just talking about district 8. it was not defining that partisanship plays in april with respect to the rest of the mat. if you read beyond the paragraph to the district court said that the amount of deviation that was attributable to the attempt to make the district more competitive was less than one percent, i think it was .7 percent. so. so it really is a small, very small. >> wasn't a factor or not? was partisanship just irrelevant? it played no role, everything would've came as the same way? according? according to the district courts of question. >> the district court found in respect to one district of the five commissioners were motivated by partisanship motive. but again, our first position is that the this court does not need to go to what the actual findings were with rest of the motor because with the plaintiff's needed to do was come in and demonstrate at the front and that the cannot be explained as an effort to comply with legitimate redistricting criteria. >> what is the position of united states and the question question of whether it is permissible to intentionally
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take partisanship, use partisanship as a guiding principle in redistricting? is that permissible in a quest mark. we have not taken a position on that. >> i know you haven't. it seems very unfortunate. it's a little difficult for us to address it since that is one of the main questions of the case. >> the united states has never participated in the gerrymandering cases per their lessons to be drawn from this court cases in gaffney the court indicated that certainly consideration politics and partisanship does not necessarily make a plan unconstitutional. but again in this case i think in order to get to the question of what the states actual motives were there has to be some demonstration that the motives were not the announced motives in the constitution. >> so you're unwilling to tell me whether intentional use of partisanship and redistricting is acceptable and not? >> i think it that it can be permissible. the districting body gaffney was driven by desire to equalize partisanship. >> i took it that the position of the united states is at
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least, with many commissions are nonpartisan because we had to people who were more partisan on one side and two people on the other side and one neutral. so at the least the commissions and commissioners don't account for the majority. the partisan is not sold by a majority of the commissions. then it is constitutional. so some members of the commission to take partisan consideration into account where there are not a majority were the result is under 10%. >> i think i was the district's court conclusion. >> it's your conclusion of representing the united states. >> we have not taken a position on how and why the partisanship would be found. >> what you say well, to members of the commission out of five
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did have a partisan motive in part, so you have to i think have to say whether you think that is that situation is constitutional or not. >> let me make the case wimmer time for having a robust professional case. what they needed to do was come into court here's a map and cannot be explained by criteria defined in the constitution. the very first criteria listed in the constitution's compliance with the voting rights act. if you look at the map and you look at which districts are underpopulated and which have the ability to elect district there's almost a perfect correlation. that i think that is a perfectly legitimate explanation for why there deviations in the case. >> understand that if you think for the justices a of this court voted a certain way in a case because they were racists, the
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opinion would still be valid because after all five of us were not. would you even consider that? and why is it any different for a commission like this? the mere fact that two of them are -- if partisanship is indeed bad. >> i think we don't have a position on how one would analyze -- >> excuse me, and it's not this court, number 3i don't know know any court like that, and number four, if you're going to say that no members of a redistricting commission can ever have partisan views come i don't know where you're going to get your membership on. that many of these commissions i would think would balance people who know about district dude i would also are republicans with people who know about it and are also democrats. and then you have someone of undoubted, neutral leadership. >> that's not the case here. >> that places a lot of weight in selecting the fifth a person who is -- if that person deep
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down is partisanship one side or the other the then the whole thing goes. and that is the allegation here by the way. >> and starred in rupp, the court has always said the politics are is going to be part of redistricting. so. >> i agree with that and that's a different point. >> you don't have a position on whether that is acceptable or not. the difference between saying something is a necessary evil insane it is able. >> i think this court's decision have told us that it is light up partisanship play some role in redistricting. that is less than of gaffney. >> i'm really surprised by the way you read the district court's opinion. and based on that stander that they applied. >> it is on page 63 a running over into 64a. and in the final paragraph it begins the bottom of the page, for decision purposes the
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majority the panel made up of judge christopher and judges over the have concluded that plaintiffs have not demonstrated partisanship predominantly over legitimate redistricting consideration. doesn't that mean that they found that there were some illegitimate considerations? and they assumed that partisanship was not a legitimate consideration. >> on page 79 a which which is where you are reading from earlier it's clear that the partisanship played a role only to the -- if this court allows plaintiffs to come in and just point to deviations. >> just to clarify your answer you think that what you said in footnote ten only applies one district? >> yes i have not heard the other side disagreeing with that. if this makes it too easy for plaintiffs to come in a point to deviations and partisan correlations than is going to totally wipe away the 10% leeway with important districting principle. >> thank you ms. harrington.
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>> you have a four minutes remaining general. >> thank you. what about footnote do you agree with the characterization that the other side has may? >> will foot not 10, no i do not. the person i would i would quote was not limited just to district eight. partisanship was ranked in this redistricting process as demonstrated objectively not just with the judge chart but also demonstrated by the fact of district aid to which was it not submitted for preclearance. >> i want to find in, i don't want to look at a chart. >> well to make my own factual determination, what factual finding other than footnote ten is there? >> then i would quote from appendix 1078 which is where the statement made judge clifton correctly finds that the irc was
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actually motivated by both the partisan advantage and hope for voting rights precleared so we have a majority for that finding the facts. that is to members of the court specifically found that partisanship was one of the two motives to explain these deviations from one person, one vote. so clearly it was a motive. at that point is even judge silver noted this is a mix motive. >> to what extent. the other side is going to say yes that's true, but it's only true to that one district discussed it but note ten. >> if that is so, then they would have stopped and adopted the initial map and not continue to deviate from 4% to 8% for the final map. the initial map, the, the draft map was a 4% deviation. doctor king, their own experts said this map complied with voting rights act and yet they went after that and continued deviating in underpopulated districts to get to the .8%. that included the nations with district eight. so if the only legitimate reason
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was to obtain preclearance than they would have accepted the draft map and it was a big game over. they did it. they -- >> i think they wanted to make it super sure that they complied with the voting act. i think that is why they said they kept going. >> the explanation that was made was that there quote strengthening these districts by continuing to underpopulated districts because their consultants said that does help us get voting rights preclearance approval. that is what the explanation was made. but if but if their own expert said the original map, that drop map satisfy the the voting rights act and the only reason to it depopulation of these districts was to achieve a further partisan sku which judge wakes chart demonstrates, then that shows that partisanship was and i understand to the members said it was not the primary motive, but it was certainly a pervasive motive in the process in which these districts were drawn. our position position is a very narrow one that we ask
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the court to whole. is that partisanship does not justify deviating from one person, one vote. and that a mistaken belief that preclearance was necessary to populate also does not justify deviating from one person one vote. >> wears the district initiate state in which it does not play a role. i wiese would say there's an outer limit that justice kolea articulated one person one vote you can be partisan and we don't fault the commission for heaven partisan interests. republican members, even if the member have partisan interest for the democrats. that is fine. the problem here is not that they have partisan motives it is that they deviated from the one person one vote principle to further those partisan votes.
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>> if i can ask the question that ms. harrington left with, i'm sorry, if you're saying that even within the 10% to go from 1% - two percent, from 2% until 3% and someone can come in and say that is partisanship, it means that every single plant will be up for grabs in every single place, doesn't it, doesn't it? >> i don't think it does. it doesn't because that in this case there is no other legitimate reasons to explain it. if that was the only reason to deviate from one person one vote, then it is not a constitutional plan that is not present in all the other cases. >> thank you counsel, the case is submitted. >> tonight a book to be a
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primetime, recent america. starting at eight p.m., carol anderson and white rage, the unspoken truth of racial divide. after that, david horowitz of progressive racism. at 1015 p.m., melissa and white backlash. immigration, race, backlash. immigration, race, and american politics from the san antonio but fair. at 11:00 p.m., d. watkins and abram kinde at the annapolis, maryland book festival. all of this tonight a book to book to be prime time on c-span2. >> book tv on c-span2, 48 hours of nonfiction books and authors this weekend. saturday at 10:00 p.m. on afterwards wall street journal kimberly stossel argues that the lab is utilizing tactics to serve the political process in her book, the intimidatiam

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